Tuesday, May 17, 2011

Dahlia Lithwick and Ezra Klein are a couple of my favorite pundits in the whole blogosphere. Lithwick is snarky, and Klein is wonky, but they're both smart, opinionated, insightful, and informed. They're also both pretty standard members of the progressive, bourgeois liberal class, which means that, in their own different ways, they're pretty committed to making things work the way their own senses of enlightened rationality tell them they should. Which is why they've just written two of the most forehead-slappingposts I've ever seen from them: it appears that it's very frustrating for them to have to look at the forest rather than the trees.

The forest under consideration here is nothing less than the U.S. Constitution itself. Specifically, it's Article 3 they're looking at, the part of the Constitution which gave us the Supreme Court; that, and at Marbury v. Madison, the 1803 Supreme Court case that established the principle of judicial review, the principle which allowed the justices on the Court the power to overturn duly legislated acts of law by judging said acts to be unconstitutional...and which, over time, has made the Court what it is today: a dominant, ofttimes domineering, and decidedly undemocratic player in our continuous national debates over what powers the different levels of government should have, and what freedoms individual citizens enjoy, and how to balance the two. The issue is, of course, the Affordable Care Act, and the claim that one of its key features--the mandate that individuals obtain health insurance through their employers, buy it on the open market, or obtain it through subsidized exchanges--violates the limits placed upon the powers of the federal government. For Lithwick and Klein, as well as for most judicial scholars, it's a no-brainer: of course it doesn't! All the individual trees--Congress's power to regulate commerce power, the necessary and proper clause, the taxing power, all of them--appear to line up so as to make the case obvious: the Affordable Care Act is a legitimate democratic decision, which makes use of legitimate government authority, to achieve a legitimate (not to mention moral) public end.

Ah, but then there's that pesky forest--a forest which is filled with people who, rightly or wrongly, have apparently decided that this particular expansion of federal power (and it is an expansion, no doubt about that), especially coming at this particular political moment, is a bridge too far. The time has come to draw a line in the sand--and if five judges on the Supreme Court choose to so draw, even if the precedents clearly point otherwise, who is to dispute them? Under our present system, apparently nobody. That is what opponents of the ACA are counting on, and which makes Lithwick and Klein--and other good members of the liberal establish--experience some genuine existential angst.

Lithwick, in considering the kind of explicitly partisan arguments--that is, explicitly invoking a particular set of party-organized and party-articulated constitutional arguments--that are being brought forward in this dispute, arguments which have so far been rejected by majorities of three federal courts and embraced by majorities on two (with the results have tracked perfectly with whether the judges in question were Democratic or Republican appointees), shakes her head. She confesses herself to be a "lifelong believer in judicial review," but that what she sees as the "absurdity" of the arguments being made, it makes her wonder if it isn't time to stop "believing in the integrity and infallibility of the judicial branch" and take seriously the case against a political system that places such enormous power--and thus creates such hysterical stakes--on the decisions of nine unelected political appointees. Klein may not be struggling with quite as much a crisis of faith, but still admits that everyone has apparently "substantially underestimat[ed] the partisanship of the judiciary on a big, polarizing issue like this one," and is fearful for our constitutional system itself, as "it’s bad for the judiciary...[to look] less and less insulated from politics."

The Supreme Court, insulated from politics? How can anyone actually write lines like that with a straight face? Hasn't there been morethanenoughresearch on this topic already? The U.S. Supreme Court, just like every other federal or state court, is a political institution. That's not to argue that upholding the ideal of the law as a neutral adjudicator in the midst of a politically divided and pluralistic nation has no relevance to maintain a stable body politic; it surely does. But the fissures which have emerged over the Affordable Care Act are reflecting something much larger than the breakdown of the sort of consensus which folks like Lithwick and Klein, and many millions of others, have apparently long assumed to be natural; it's the democratic tension of creating a polity premised upon self-government, and then extending and contorting and corrupting that polity to such a degree, over such a long period of time, that the more egregiously undemocratic elements of it can't help but become focal points of crisis. Not a total, immediate crisis, to be sure; the cynics and doubters of democracy will observe that most people, most of the time, would just rather not have to think about what is involved in governing themselves, in caring for their own community, and paying the costs of such, and the fact that the obviously skewed nature of Supreme Court decisions over the years haven't much affected the overall legitimacy of the Court in the eyes of most Americans might be taken as evidence of that fact. But the additional fact that, in the wake of the passage of the ACA, we have seen moves of the sort which the dominant figures in our political class would have considered utterly scandalous only a few years ago--with nearly a quarter of the states in the union talking seriously about reviving nullification, a constitutional idea of state sovereignty that had its last hey-day during the struggle over the desegregation of public schools--suggests that the forest may be on the move, and contented defenders of the individual trees within our national forest need to wake up to that fact.

My position is that, with every additional bit of timber which is thrown on the constitutional fire, I see more and more wisdom in writers as different as Bill Kauffmann and Peter Levine--two thinkers who, despite their likely huge disagreements, both recognize that the problem isn't with the trees in the forest, but the size and shape of the forest itself. We all need to continually re-educate ourselves in what it means to take responsibility for our lives, our families, our neighborhoods, our public spaces--but we also need to find or build contexts where conceiving of that responsibility is even a possibility. It just may not be possible in a continent-wide nation, where authority is centralized and participation is made overwhelmingly dependent upon access to elite expertise, restricted venues of access, and most of all money. Perhaps there are "progressive" (though I would call them populist or communitarian) routes to empowerment, or perhaps secessionist solutions are the only ones still on the table. Or perhaps there is still some tinkering that can be down around the edges of our constitutional system, to make it slightly more governable. (Matt Yglesias is right that part of the reason why the Supreme Court has been able to make itself into such a dominant entity is because our legislative branch, particularly the Senate, is marvelously dysfunctional.) Those kind of meliorist solutions have an appeal to me, as an academic--and therefore, as much as I try to get myself and my students out into the real world right next door to us, and as much as I try to expose them and myself to radical alternatives, pretty much a member of the bourgeois liberal political class right alongside Lithwick and Klein as well. And so, for better or worse, I'll probably keep supporting those solutions, and keep reading those authors; after all, they are good writers, and they do have good ideas, sometimes. But overall, I confess I have less and less confidence in the way we've "constituted" this particular American forest every day.

1 comment:

I suspect you're downplaying the institutional considerations relative to the sociological/demographic ones. Yglesias is quite right to point to the importance of status quo bias--and it's not just that convention against routine filibusters has broken down, leading to an effective 60% hurdle there; it's also the existence of a second chamber, period, combined with a veto-empowered president. I suspect India might be a better example for what you're talking about--more majoritarian formal institutions, but weaker institutional competence, and *far* greater ethnic/linguistic/religious/ideological diversity. A recent WSJ article on India's "hyper-activist" judiciary; some more links from ComparativeConstitutions.

Quotes

"Every one of the standards according to which action is condemned demands action. Although the dignity of persons is inevitably violated in action, this dignity would be far less recognized in the world than it is had it not been supported by actions such as the establishment of constitutions and the fighting of wars in defense of human rights. Action must be untruthful, yet religion, science, philosophy, and the arts, the main forms of absolute fidelity to the truth, could not survive were they unsupported by action. Action cannot but be anticommunal in some measure, yet communal relationships would be almost nonexistent without areas of peace and order, which are created by action. We must act hesitantly and regretfully, then, but still we must act."

(Glenn Tinder, The Political Meaning of Christianity: The Prophetic Stance [HarperSanFrancisco, 1991], 215)

"[T]he press was still the last resource of the educated poor who could not be artists and would not be tutors. Any man who was fit for nothing else could write an editorial or a criticism....The press was an inferior pulpit; an anonymous schoolmaster; a cheap boarding-school; but it was still the nearest approach to a career for the literary survivor of a wrecked education."

"Mailer was a Left Conservative. So he had his own point of view. To himself he would suggest that he tried to think in the style of [Karl] Marx in order to attain certain values suggested by Edmund Burke."

(Norman Mailer, The Armies of the Night [The New American Library, 1968], 185)

"All those rely on their hands, and each is skillful at his own craft. / Without them a city would have no inhabitants; no settlers or travellers would come to it. / Yet they are not in demand at public discussions, nor do they attain to high office in the assembly. They do not sit on the judge's bench or understand the decisions of the courts. They cannot expound moral or legal principles and are not ready with maxims. / But they maintain the fabric of this world, and the practice of their craft is their prayer."

(Ecclesiasticus (Sirach) 38:31-34, in The Revised English Bible with the Apocrypha [Oxford University Press, 1989])

"The tendency, which is too common in these days, for young men to get a smattering of education and then think themselves unsuited for mechanical or other laborious pursuits is one that should not be allowed to grow up among us...Every one should make it a matter of pride to be a producer, and not a consumer alone."

(Wilford Woodruff, Millennial Star [November 14, 1887], 773)

"We are parts of the world; no one of us is an isolated world-whole. We are human beings, conceived in the body of a mother, and as we stepped into the larger world, we found ourselves immediately knotted to a universe with the thousand bands of our senses, our needs and our drives, from which no speculative reason can separate itself."

"'Business!' cried the Ghost, wringing its hands again. 'Mankind was my business. The common welfare was my business; charity, mercy, forbearance, and benevolence, were all my business. The dealings of my trade were but a drop of water in the comprehensive ocean of my business!'"

(Charles Dickens, A Christmas Carol [Candlewick Press, 2006], 35)

"The Master said, 'At fifteen, I set my mind upon learning; at thirty, I took my place in society; at forty, I became free of doubts; at fifty, I understood Heaven's Mandate; at sixty, my ear was attuned; and at seventy, I could follow my heart's desires without overstepping the bounds of propriety.'"

"Lack of experience diminishes our power of taking a comprehensive view of the admitted facts. Hence those who dwell in intimate association with nature and its phenomena grow more and more able to formulate, as the foundations of their theories, principles which admit a wide and coherent development: while those whom devotion to abstract discussions has rendered unobservant of the facts are too ready to dogmatize on the basis of a few observations."

"[God] does not want men to give the Future their hearts, to place their treasure in it. . . . His ideal is a man who, having worked all day for the good of posterity (if that is his vocation), washes his mind of the whole subject, commits the issue to Heaven, and returns at once to the patience or gratitude demanded by the moment that is passing over him."

"Money is simply a tool. We use money as a proxy for our time and labor--our life energy--to acquire things that we cannot (or care not to) procure or produce with our own hands. Beyond that, it has limited actual utility: you can't eat it; if you bury it in the ground, it will not produce a crop to sustain a family; it would make a lousy roof and a poor blanket. To base our understanding of economy simply on money overlooks all other methods of exchange that can empower communities. Equating an economy only with money assumes there are no other means by which we can provide food for our bellies, a roof over our heads and clothing on our backs."

"A scholar's business is to add to what is known. That is all. But it is capable of giving the very greatest satisfaction, because knowledge is good. It does not have to look good or even sound good or even do good. It is good just by being knowledge. And the only thing that makes it knowledge is that it is true. You can't have too much of it and there is no little too little to be worth having. There is truth and falsehood in a comma."

"I believe in democracy. I accept it. I will faithfully serve and defend it. I believe in it because it appears to me the inevitable consequence of what has gone before it. Democracy asserts the fact the masses are now raised to a higher intelligence than formerly. All our civilization aims at this mark. We want to do what we can to help it. I myself want to see the result. I grant that it is an experiment, but it is the only direction society can take that is worth its taking; the only conception of its duty large enough to satisfy its instincts; the only result that is worth an effort or a risk. Every other possible step is backward, and I do not care to repeat the past. I am glad to see society grapple with issues in which no one can afford to be neutral."